Increasingly, courts and parties to divorce elect to go to mediation to resolve their issues rather than traditional litigation. In mediation, the parties agree to work with one attorney, the mediator, who will guide them through the legal issues to resolve and to help them reach a final agreement. Mediation relieves parties of having to each get an attorney and to opt out of the traditional litigation model. For couples who believe they can cooperate amicably, mediation offers a less stressful and less costly method of divorce.
But of course the overriding question the parties will have remains how to find the “right” mediator. What makes a mediator “right” for a couple? In a word: trust.
Mediation rests on a singular foundation – belief in the fairness of the process. The mediator will remain neutral, transparent, helpful. But before selecting a mediator, couples interviewing a mediator should first assess whether they feel they can trust the mediator.
Trust in this sense has both an objective and subjective component. Objectively, the mediator must have the right approach that will work for the couple. Not all mediators have the same approach. For example, some mediators ask more of the couple in terms of workload, disclosure and sessions; others might seem more heavy-handed in an attempt to remove emotion and stay on a rational approach to the issues. Every couple must determine if the mediator’s process will work for them, meaning it would be compatible given their goals, number of issues, distance apart in resolution, commitment, and personality. If the couple makes the wrong choice, the mediation could ultimately fail and the parties would have to proceed in the traditional litigation model, defeating the purpose of mediation.
Subjectively, the couple must make a “gut” judgment about the mediator. Does this person seem honest and forthright? Does this person communicate in a way I understand and appreciate? Do I sense this person will be fair and not favor my spouse? Does this person understand my financial situation and parenting goals? Ultimately, do I feel I can work with this person to a good outcome? Answering these questions have less to do with the objective markers of process and more to do with how we relate to people. In other words, trust.
Because mediation depends on one person, the mediator, to work, the participants must buy in fully or the mediation will not succeed. And to get a complete buy in, the participants must trust the mediator to work in both parties’ best interests, to gain the trust of each spouse.
One mediator is not for everyone. Some will feel comfortable with a mediator who is of the same gender, temperament or background; others will have different markers of comfort. That is why interviewing mediators is so important – indeed, it is probably the most important part of the mediation process.
Mediation is a good option for those willing to do the hard work of sorting through issues of property, support and custody in the right environment with the right facilitator. So if you cannot trust the mediator, you have likely doomed yourself to an unsatisfactory outcome. On the other hand, if you do trust the mediator, you have a good chance of a successful agreement.
If you have questions about divorce and mediation, contact us – we can help.